State v. White ( 2020 )

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STATE OF CONNECTICUT v. ANDRE D. WHITE
(AC 42471)
Keller, Prescott and Moll, Js.
Syllabus
Convicted, after a jury trial, of the crimes of home invasion, robbery in
the first degree, conspiracy to commit burglary in the first degree and
tampering with a witness, the defendant appealed to this court. The
defendant’s conviction stemmed from an incident in which he and two
other men, D and L, pursuant to their plan to commit a home invasion
and robbery, followed the victim to his residence, forced him into the
residence at gunpoint and robbed him of various possessions, including
his credit and ATM cards, two rifles, a box of shotgun shells, and a vase
containing approximately $75 in coins. During their investigation, the
police obtained a warrant to search the defendant’s residence and to
seize any items that were described in the warrant application and
supporting affidavit as either having been removed from the victim’s
residence or used or worn by the defendant during the commission of
the home invasion. Upon execution of the warrant, the police seized
several items, including a box of 20 gauge shotgun shells and a black
ski mask. Prior to trial, the defendant filed a motion to suppress any
and all evidence that the police seized from his residence. The trial
court denied the motion, concluding, inter alia, that the search warrant
was supported by probable cause. During the trial, the state called D,
who testified in detail about the events leading up to and including the
home invasion, and the defendant’s involvement therein. D also testified
that he had entered into a plea agreement with the state, pursuant to
which he pleaded guilty to the crime of burglary in the first degree and
agreed to testify for the state in exchange for a sentence of between
seven and nine years of imprisonment. The plea agreement, which was
admitted into evidence without objection, expressly provided that the
ultimate decision as to the sentence that D received would be decided
by the judge who presided over the defendant’s trial, after consideration
of the credibility of D’s testimony at trial, as well as other factors. On
appeal, the defendant claimed that he was deprived of a fair trial as a
result of prosecutorial impropriety and that the court improperly denied
his motion to suppress the evidence that was seized pursuant to the
search warrant. Held:
1. The defendant could not prevail on his unpreserved claim that prosecu-
torial impropriety that occurred during the state’s examination of D and
closing argument deprived him of a fair trial:
a. Contrary to the defendant’s claim, the prosecutor’s inquiry during his
redirect examination of D about D’s reasons for entering into the plea
agreement with the state, which elicited testimony from D that the
prosecutor had not made an offer until he was satisfied that D was
being truthful, was not improper; the prosecutor’s inquiry was based
on the evidence and did not suggest that the prosecutor was vouching
for D’s credibility on the basis of facts outside of the record.
b. The defendant’s claim that the prosecutor improperly vouched for
D’s credibility during the state’s rebuttal closing argument was unavail-
ing: the prosecutor’s reference to the fact that D’s plea agreement
required the presiding judge to make a determination of D’s credibility
was based on the evidence and did not suggest to the jury either that
the court already had found D to be credible or that the jury was not
required to evaluate D’s credibility because the court would do so;
moreover, contrary to the defendant’s assertion, certain challenged argu-
ments of the prosecutor concerning D and the plea agreement were not
an attempt by the prosecutor to inject his credibility into the trial or to
ask the jury to trust his professional judgment and integrity when
assessing D’s credibility, as the arguments were properly limited to the
evidence and the rational inferences to be drawn therefrom; furthermore,
the prosecutor did not mischaracterize defense counsel’s arguments
that the state had ‘‘bought and sold’’ D’s testimony and that the prosecu-
tor was supporting perjury, the prosecutor having properly attempted
to refute these challenges to D’s testimony by arguing that because the
plea agreement was contingent on D testifying credibly, it did not logi-
cally provide him with a motive to be untruthful, and there was no merit
to the defendant’s contention that the prosecutor vouched for D by
suggesting that, by testifying, he risked being prosecuted for perjury.
2. The trial court properly denied the defendant’s motion to suppress evi-
dence that was seized pursuant to the search warrant, the warrant having
been supported by probable cause: the defendant could not prevail on
his unpreserved claim that the facts set forth in the search warrant
affidavit did not provide probable cause to believe that he would have
retained the items sought to be seized in his residence four months
after the home invasion, because the affidavit set forth facts that either
implicated the defendant as a participant in the home invasion or as
being in the company of L, who was known to be a participant, shortly
after the home invasion occurred, it was reasonable to infer that the
defendant may have possessed items taken from the victim’s residence
or that he possessed devices, such as a cell phone, that would have
been used in the commission of the crime, and, on the basis of certain
averments set forth in the affidavit, it was reasonable to infer that, four
months after the home invasion, the defendant probably possessed a
cell phone or a GPS device that he had possessed at the time that the
crime occurred, that he still would have possessed the types of items
that were stolen from the victim and that, in light of the variety of the
items taken, one or more of the items would be kept by the defendant
in his residence, and the judge who issued the search warrant reasonably
could have relied on the training, experience and expertise of the detec-
tive affiants in this regard; moreover, the defendant’s contention that
the facts set forth in the affidavit were insufficient to demonstrate that
he was a participant in the home invasion because the facts concerning
his friendship with L and his presence with him at a supermarket on
the morning following the home invasion reflected innocent behavior
that did not give rise to a suspicion that he was a participant was
unavailing, as it was reasonable to infer, in light of other facts in the
affidavit, that the defendant’s act of exchanging approximately $68 in
coins by means of the supermarket’s Coinstar machine, which was
recorded by the store’s surveillance camera, was suspicious and tended
to give rise to probable cause that he possessed evidence related to the
home invasion, and the affidavit reflected that, while the defendant was
cashing in the receipt for the coins, L was at a cash register attempting
to use the victim’s stolen credit card; furthermore, the finding of probable
cause to issue the search warrant did not depend on facts in the affidavit
that tended to demonstrate that the defendant was a perpetrator of the
home invasion, and the affiants presented facts that gave rise to a
probability that the defendant was in possession of items connected
with the home invasion not only due to his participation in the criminal
endeavor but also due to his relationship with and activities with L, who
was identified as a suspect in the crime within hours of its commission.
Argued September 9, 2019—officially released February 11, 2020
Procedural History
Substitute information charging the defendant with
two counts of the crime of robbery in the first degree,
and with the crimes of home invasion, conspiracy to
commit burglary in the first degree and tampering with
a witness, brought to the Superior Court in the judicial
district of Litchfield at Torrington, where the court,
Danaher, J., denied the defendant’s motion to suppress
certain evidence; thereafter, the matter was tried to the
jury before Dooley, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, former
state’s attorney, and David R. Shannon, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Andre D. White, appeals
from the judgment of conviction, rendered following a
jury trial, of home invasion in violation of General Stat-
utes § 53a-100aa (a) (1), robbery in the first degree in
violation of General Statutes § 53a-134 (a) (4), robbery
in the first degree in violation of § 53a-134 (a) (2), con-
spiracy to commit burglary in the first degree in viola-
tion of General Statutes §§ 53a-48 and 53a-101 (a) (3),
and tampering with a witness in violation of General
Statutes § 53a-151.1 The defendant claims that (1) prose-
cutorial impropriety that occurred during the prosecu-
tor’s examination of a witness, as well as during the
state’s closing argument, deprived him of his right to a
fair trial, and (2) the court improperly denied his motion
to suppress evidence that was seized pursuant to a
search warrant that was not supported by probable
cause. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
Early in 2013, the defendant, Henry Le, and Trayvon
Dunning were serving time as inmates at the same cor-
rectional facility. During this time, the three men agreed
to commit home invasions following their release from
prison.2 Following the release of the defendant and Le,
Dunning was released on March 28, 2013. Thereafter,
the defendant, Le, and Dunning refined their plan. The
men agreed that they would identify a suitable victim
in public, follow the victim home, and commit a robbery
at his or her residence. In preparation to carry out their
plan, in early April, 2013, they purchased items at a
home improvement store, including masks, gloves, and
zip ties.
Late in the day on April 7, 2013, Dunning was driving
an automobile on Interstate 84 in Hartford, and the
defendant and Le were his passengers. The three men
observed the victim, Peter Brown, who was driving a
BMW sport utility vehicle. The men decided to follow
the victim after observing that he appeared to be alone,
that he was a white male in his forties or fifties, and he
was driving an expensive automobile. The men followed
the victim from Hartford to his residence in New
Hartford.
The victim arrived at his residence at approximately
11:30 p.m. As the victim approached the back door of
his residence, the defendant, Le, and Dunning, all of
whom had their faces concealed, confronted him. The
victim was approached first by two of the three men,
one of whom was brandishing a gun. They ordered the
victim to put his ‘‘hands up.’’ The third man, with his
face covered, then approached the victim from his right
side. The men ordered the victim to give them his wallet
and his cell phone. At gunpoint, the victim complied.
The men then asked the victim whether anyone was
inside his residence and whether he had a dog or an
alarm system. After the victim informed them that
nobody else was at home and that he did not have an
alarm system, the men forced the victim inside his res-
idence.
For the next forty-five to fifty minutes, the defendant,
Dunning, and Le confined the victim to a chair in his
kitchen. They searched the contents of an overnight
bag that the victim had been carrying. They repeatedly
asked the victim if he owned a safe, to which he replied,
no. They removed a credit card and an automatic teller
machine (ATM) card from his wallet. One of the men
demanded the victim’s ATM card’s pin number. The
victim replied that he was only able to remember the
letters corresponding to his pin number, but not the
number itself. Because he was terrified by the circum-
stances, the victim had difficulty converting the letters
into a number. One of the men ripped a telephone off
the wall and demanded that he provide them with the
number. After the victim provided the pin number, Le
demanded the keys to the victim’s automobile, asked
him where the nearest ATM was located, and left the
residence. Le returned to the victim’s residence a short
time later after having withdrawn funds from the vic-
tim’s bank account at an ATM in New Hartford.3
While one of the three men held the victim at gunpoint
in his kitchen, they each took turns ransacking every
room of his residence in search of valuables. The men
brought various items to the kitchen. Thereafter, Dun-
ning parked his automobile in the victim’s driveway.
While the victim continued to be held at gunpoint, as
he had been throughout the entire incident, the men
carried several of the victim’s possessions to Dunning’s
automobile. Among the possessions removed from the
residence were an overnight bag, two long rifles, a box
of shotgun shells,4 camera equipment, a gold watch, a
laptop computer, a hunting knife, and a large vase that
contained approximately $75 in coins.5
After the victim was ordered to turn around, the
defendant, Le, and Dunning exited the residence. They
then quickly fled from the scene in Dunning’s automo-
bile.6 The victim went to his neighbor’s residence to
request help. The victim’s neighbor called 911, and the
police arrived on the scene quickly thereafter.
Following the defendant’s arrest and while he was
awaiting trial on the charges at issue in the present
appeal, he had conversations with others in an attempt
to persuade Dunning not to testify against him. During
a recorded telephone conversation with the mother of
Dunning’s child, a person who was identified at trial as
‘‘Jasmine,’’ the defendant explained that Dunning had
provided the police with a statement that implicated
him. The defendant asked Jasmine to pressure Dunning
not to testify, stating that Jasmine ‘‘don’t like no . . .
snitches.’’ He asked Jasmine to tell Dunning that testi-
fying against the defendant would harm his relationship
with her. He cautioned Jasmine not to let Dunning know
that he called her and stated that, if Dunning knew
about the call, he would ‘‘go back to the court and
tell them.’’
The next day, the defendant attempted to speak with
Jasmine a second time. Instead, he reached her boy-
friend by telephone, and Jasmine’s boyfriend did not
permit the defendant to speak directly with her. The
defendant told Jasmine’s boyfriend that it was foolish
for Dunning to cooperate with the prosecution and that
he wanted Jasmine to prevent Dunning from testifying.
He stated that the ‘‘best bet [was for Dunning] to not
testify at all.’’ He explained that if Dunning invoked
his fifth amendment privilege against self-incrimination,
then ‘‘they can’t do shit to him.’’ The defendant also
stated that he would be offered a favorable plea deal
if Dunning refused to testify. The defendant stated that
he could have people ‘‘put hands on’’ Dunning, but he
was ‘‘just trying to save [Dunning] from getting touched
. . . [as he was] not trying to go that route . . . .’’7
Dunning testified on behalf of the state at trial. Addi-
tional facts will be set forth as necessary.
I
First, the defendant claims that prosecutorial impro-
priety that occurred during the state’s examination of
Dunning, as well as during the state’s closing argument,
deprived him of his right to a fair trial. We disagree.
The defendant’s unpreserved claim8 focuses on the
prosecutor’s examination of Dunning, as well as argu-
ments made by the prosecutor during the state’s rebut-
tal closing argument. With respect to the examination
of Dunning during trial, the following additional facts
are relevant to the present claim. Dunning was called as
a witness by the state during its case-in-chief. Dunning
appeared in prison garb and, at the very beginning of his
direct examination by the state, the prosecutor elicited
testimony that he was incarcerated as a result of the
role he played in the incident giving rise to the charges
that were brought against the defendant, namely, the
2013 home invasion that occurred in New Hartford.
During his testimony, he stated that he had entered into
a plea agreement with the state pursuant to which he
pleaded guilty to a single criminal offense—burglary in
the first degree—and he agreed to testify in the defen-
dant’s case in exchange for a sentence of between seven
to nine years of imprisonment. Dunning testified that,
at the time of the defendant’s trial, he was awaiting
sentencing. Without objection, a copy of the written
plea agreement was admitted into evidence and read
aloud by the courtroom clerk in the presence of the jury.
In relevant part, it stated that ‘‘the ultimate decision
regarding the sentence [Dunning] receives will be made
by the sentencing judge, the Honorable Kari Dooley,
after consideration of the credibility of his testimony’’
at the defendant’s trial, as well as other factors.
Thereafter, during the state’s case-in-chief, Dunning
testified about the events leading up to and including
the home invasion. In relevant part, he testified that
while he was incarcerated with the defendant and Le,
the three men planned to commit home invasions fol-
lowing their release. Shortly after Dunning was released
on March 28, 2013, he, the defendant, and Le prepared
to carry out their plan by purchasing items at a home
improvement store. On April 7, 2013, accompanied by
the defendant and Le as his passengers, Dunning drove
behind the victim, following him to his residence in
New Hartford. Dunning testified that when he arrived
at the victim’s residence, ‘‘we all jumped out . . . got
on [the victim’s] porch, searched his pockets, got his
stuff, I opened his door, got him inside, sat him down
and we all just searched the house for his stuff.’’ He
stated that, while the victim was held at gunpoint for
approximately forty-five minutes to one hour, he, the
defendant, and Le searched the residence for valuables.9
During this period of time, Le left briefly to visit an
ATM for the purpose of withdrawing money by means
of the victim’s card. Dunning testified that after many
of the victim’s possessions, including guns and camera
equipment, were placed into the trunk of his automo-
bile, he drove away from the scene with the defendant
and Le.
Dunning testified that in July, 2013, he learned that
the police were interested in speaking with him and that
they had executed a search warrant at his residence.
He voluntarily met with the police and, after they
showed him photographs that incriminated him, the
defendant, and Le, he provided a statement about the
events at issue. Dunning provided the police with the
names of the defendant and Le. He testified that, later,
he met with the police once again, was transported to
a police station, and provided the police with a second
statement. He testified that he had ‘‘kind of lied a little
bit’’ in his police statements with respect to whether
he had entered the victim’s residence. He testified that
although he had accurately told the police that he was
with the defendant and Le on the night of the home
invasion and that he drove Le and the defendant to the
victim’s residence, he had inaccurately told the police
in these statements that he had merely waited outside
of the victim’s residence during the commission of the
home invasion. He said that he had been untruthful
about the extent of his role in the crimes because he
was trying to avoid more serious charges.
Defense counsel cross-examined Dunning. Dunning
testified that he was arrested on August 9, 2013, and
charged with several crimes, but that he did not enter
into the plea agreement with the state until March 17,
2017. He testified that, pursuant to the agreement, sev-
eral charges would not be pursued by the state.10
Defense counsel asked Dunning why it took so long for
him to enter a guilty plea. Dunning explained that he
was looking for the best plea deal that he could obtain
and that he ‘‘took the best option’’ that was made avail-
able to him. He stated: ‘‘I wanted to fight and see if I
can get less than they were offering, but it didn’t work.
They kept offering the same thing, so I took the best
route I could.’’
Defense counsel also questioned Dunning about the
two written statements that he had provided to the
police. Dunning agreed with defense counsel that, in
the statements, he had sworn to be truthful but, never-
theless, had misrepresented the extent of his role in
the crimes that took place at the victim’s residence.
Defense counsel asked Dunning when he had first
admitted to the police that he had entered the victim’s
residence. Dunning testified that he made this admis-
sion the month prior to the trial, when he had additional
plea negotiations with the state.
During the state’s redirect examination of Dunning,
the prosecutor further questioned him about the cir-
cumstances surrounding his plea agreement with the
state. In relevant part, Dunning testified that he was
arrested approximately five months after the home inva-
sion occurred. There was no objection and the following
examination of Dunning then occurred:
‘‘Q. Now . . . were there negotiations between your
attorney and the prosecutor who was handling the case
at that time, to your knowledge?
‘‘A. No.
‘‘Q. No negotiations. Was the state . . . either I or
the other prosecutor who initially handled the case,
willing to enter into an agreement if you weren’t telling
the truth?
‘‘A. Could you repeat the question, please?
‘‘Q. Is the agreement you entered into with the state
. . . contingent upon you telling the truth?
‘‘A. Yes.
‘‘Q. And you never entered into an agreement with
the state until last month, correct?
‘‘A. Yes.
‘‘Q. And is it correct that last month was the first
time you told anyone from the state, police, prosecutor’s
office that you went into that house, correct?
‘‘A. Yes.
‘‘Q. So, the agreement wasn’t entered into until you
told the state you went into that house?
‘‘A. Yes.
‘‘Q. Are you aware or have you read some of the
police reports about this case?
‘‘A. Yes.
‘‘Q. [D]o you know whether or not the victim was
always claiming three people went in the house?
‘‘A. As far as I know, he said three people were in
the house.’’
Defense counsel did not object to this line of ques-
tioning by the prosecutor.
Because the defendant’s claim of prosecutorial
impropriety is based, in part, on the prosecutor’s argu-
ments during the state’s rebuttal closing argument, we
next set forth relevant portions of the arguments
advanced before the jury. During the state’s initial clos-
ing argument, the prosecutor did not comment on Dun-
ning’s plea agreement with the state. During the defen-
dant’s closing argument, defense counsel focused on
the issue of Dunning’s credibility, arguing in relevant
part as follows: ‘‘Dunning testified and points the finger
at [the defendant]. What we know is that . . . Dunning
gave a statement early on, close in time to the crime.
Gave a wonderful statement, minimizing his whole par-
ticipation, basically telling an untruth to the police. In
his second statement [he] still minimized his participa-
tion and wasn’t truthful with the police . . . he told
the police he never entered the house. Why did he do
that? I think he said that . . . he thought it would be
less onerous on him and wouldn’t be as serious. If . . .
Dunning admits to a crime in basically August of 2013,
he enters a guilty plea in March of 2017. You remember
I asked him why it took so long for him to enter a plea,
and my interpretation of his body language is he froze.
He didn’t know what to say. . . . Dunning is a con-
victed felon. . . . Dunning basically told untruths to
the police until he could work a good deal. And a deal
he worked out. A deal that . . . makes Filene’s Base-
ment look like Macy’s. He entered into an agreement
that was entered into evidence with the state of Con-
necticut. And the first two words are ‘in consideration.’
This is a sales agreement. . . . The testimony changed
hands. In my opinion . . . Dunning’s testimony is com-
pletely suspect because it’s purchased. He stole his
testimony. He waived it. He wasn’t stupid. He waited,
knowing that [the state] needed his testimony. You
heard me ask him how many charges he’d been charged
with, and he listed a whole bunch of serious charges.
They’re all going away. In exchange for his testimony,
he goes to jail for no less than seven or more than nine
years. That’s a bargain basement deal. A deal he made
with the state, knowing that it was false, but it worked
out for him. And as a defense lawyer, I say good for him.
Well, as [the defendant’s] lawyer, I say don’t convict a
man based on the testimony of a lie or someone who
sells his testimony. He took . . . almost four years to
enter a plea. . . .
‘‘Dunning’s whole testimony is suspect because . . .
he doesn’t tell the truth close in time to when he first
was interrogated by the police, which was the closest
[point] in time to the crime. He waits . . . looking for
a good deal, and he finally gets one, knowing that [the
defendant], who wasn’t part of the crime, is willing to
go to trial, and they’re going to need his testimony to
convict him.
‘‘[There was evidence that Le received a suspended
sentence after fourteen years served.] Dunning knows
that. He gets a deal of half that time—good for him. He
gets home soon and all he had to do was wait, hold
out and enter into a sales agreement with the state of
Connecticut. They purchased his testimony, he sold it,
and he gets the good deal. He gets the profit.’’
In the state’s rebuttal closing argument, the prosecu-
tor responded to these arguments, in relevant part, as
follows: ‘‘[L]ook how vociferously . . . Dunning was
criticized in this case. . . . Dunning’s testimony, the
state argues, is enough to convict [the defendant] . . .
and [defense counsel] wants to say I bought and sold
that testimony, that I’m supporting perjury. . . . And
what motive does [Dunning] have to lie at this point?
Why would he? [Defense counsel] wants to say it’s
because he’s getting a sweetheart of a deal, this great
deal. He’s back in jail. He’s going to be back in jail from
anywhere from seven [to] nine years, and that’s not up
to me, it’s not based on my recommendation, it’s up to
the judge, who heard his testimony. The judge is in the
best position to evaluate his credibility, his truthfulness.
So, why would he come in here and say it was [the
defendant] . . . ? Why would he do that? And risk get-
ting two more years in jail . . . getting nine years and
seven or getting eight or getting charged with perjury,
false statement? Yet, he did, when he gave his initial
statement, he didn’t tell the police that he went in the
house, but he told the police he was there, he told the
police he was the driver and he told the police who he
was with. Did he minimize his role? Absolutely. Is that
dishonest? Yep. . . . And then some months later,
when the police had him arrested, then he gave another
statement . . . . Did he make a mistake in not telling
100 percent of the truth? Yep. Was that dishonest? Yes.
But do you throw away his entire testimony because
of that? No, you don’t have to. The state’s argument is
you shouldn’t, you shouldn’t. . . . And you’re being
told to discredit totally what [Dunning] said, that that
testimony has been bought and sold by the state. . . .
‘‘Oh, the deal, the deal. [Dunning] waited and waited
and waited until he struck this fabulous deal. . . . I
think it came out and, you now, you guys have to con-
nect the dots to a certain degree. You know you look
at the facts and what reasonable inferences you can
draw from the facts. But . . . Dunning testified . . .
the first time he ever told anyone from law enforcement,
the state’s attorney’s office, or the police that he did in
fact go into that house, and we know that three people
went into the house because that’s what [the victim]
said. The first time, it was only after that point in time
that the deal was struck. So, in deciding whether or
not the state cut some deal with him to lie [with respect
to the defendant] and give false testimony, would you
want the state of Connecticut to enter into and to deal
with somebody who’s assisting, aiding, [going] into that
house, when all of the evidence makes it clear they did?
And that deal that’s in evidence is conditioned on him
being 100 percent truthful. It says something to that
effect. It’s in evidence, you can read it. So, was it that he
was waiting and waiting and waiting until the numbers
were right, or is it that he had to come clean first, to
tell the truth, 100 percent truth or some combination
of the two?
‘‘[Dunning], why would he, if he was going to lie, why
would he come here . . . and he knows the judge is
the one who decides whether he gets between seven
and nine? Why would he come in and say, I was the
one with the gun, holding on [the victim]? Why would
he admit to that? [The victim] can’t . . . identify him
through his gun. He’s making himself look worse so,
in evaluating his credibility, consider that.’’
Defense counsel did not object to the prosecutor’s
argument in this regard.
With respect to the prosecutor’s redirect examination
of Dunning, the defendant argues that, although it was
proper for the prosecutor to disclose the existence of
the plea agreement that the state had entered into with
Dunning, it was a form of improper vouching for the
witness for the prosecutor to have elicited testimony
from Dunning that ‘‘the prosecutor had not made an
offer until he was satisfied that Dunning was telling
the truth.’’ The defendant argues that the prosecutor’s
inquiry about the reasons for the plea agreement and
Dunning’s testimony in response impermissibly sug-
gested that the state had ‘‘verified [Dunning’s] veracity
before reaching an agreement.’’ According to the defen-
dant, ‘‘[t]he state should not have implied or stated
that it would not offer Dunning an agreement until it
believed Dunning was being truthful.’’
With respect to the arguments made by the prosecu-
tor during the state’s rebuttal argument, the defendant
asserts for the first time on appeal that the prosecutor
improperly vouched for Dunning’s credibility in several
ways. The defendant correctly observes that the plea
agreement that was admitted into evidence without any
objection referred to the fact that Judge Dooley, the
judge who presided over the defendant’s trial, would
determine whether Dunning testified credibly at the
defendant’s trial, and, thereafter, the court would make
the ultimate decision regarding the sentence to be
imposed on Dunning. The defendant argues that the
prosecutor’s references to the fact that the court, and
not the prosecutor, would evaluate the credibility of
Dunning’s testimony and whether Dunning was entitled
to the benefit of the plea agreement were improper
because they invoked the integrity of the court in sup-
port of Dunning’s credibility. Moreover, the defendant
argues that, although it would have been proper for
the prosecutor to refer to the fact that a judge would
determine whether Dunning had testified credibly, it
was improper for the prosecutor to state that the judge
who was presiding over the defendant’s trial would
make that determination. According to the defendant,
‘‘[t]o tell the jury that this judge, the judge presiding
over the case before the jury, is evaluating [Dunning’s]
credibility undermine[d] the jury’s role as sole judge of
the facts’’ and implicitly suggested that it was not in
the best position to evaluate Dunning’s credibility.
(Emphasis in original.)
The defendant argues that, in addition to bolstering
Dunning’s testimony by referring to the court’s evalua-
tion of his testimony, the prosecutor’s arguments imper-
missibly suggested that the state would not have
entered into the plea agreement with Dunning unless
he, or the state, had determined that Dunning’s testi-
mony was credible. The defendant asserts that the pros-
ecutor improperly referred to the fact that he had not
supported perjury by presenting Dunning’s testimony
and improperly argued that Dunning was not offered
the plea agreement until Dunning had ‘‘come clean first,
[told] the truth, [and was] 100 percent’’ truthful. By
these arguments, the defendant asserts, the prosecutor
essentially turned an evaluation of Dunning’s testimony
or the defendant’s innocence into a referendum on the
integrity of the prosecutor. Thus, the defendant argues
that the prosecutor ‘‘put his own credibility in issue,
implicitly and expressly asking the jury to trust his
professional judgment and integrity in deciding when
to make an offer to Dunning. Although the prosecutor
expressly referred only to when Dunning’s testimony
matched [the version of events to which the victim
testified], the jury may have inferred that his decision
also derived from his or her secret knowledge of facts
not in evidence.’’
Finally, the defendant argues that the prosecutor
improperly vouched for Dunning’s credibility by sug-
gesting that Dunning was credible because he did not
want to risk receiving a longer sentence for having
committed perjury at the defendant’s trial. The defen-
dant argues that, although it would have been proper
for the prosecutor to refer to the plea agreement and
to ask Dunning if he understood the consequences of
breaching the agreement by testifying untruthfully, the
prosecutor’s argument in the present case was improper
because it suggested ‘‘that the prosecutor knows if the
witness is telling the truth or [implied] that he possessed
information not presented to the jury that would enable
him to know if the witness were lying.’’
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process
right to a fair trial. . . . [T]he defendant has the burden
to show both that the prosecutor’s conduct was
improper and that it caused prejudice to his defense.
. . .
‘‘In determining whether the defendant was deprived
of his due process right to a fair trial, we are guided
by the factors enumerated by [our Supreme Court] in
State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987). These factors include [1] the extent to which
the [impropriety] was invited by defense conduct or
argument, [2] the severity of the [impropriety], [3] the
frequency of the [impropriety], [4] the centrality of the
[impropriety] to the critical issues in the case, [5] the
strength of the curative measures adopted, and [6] the
strength of the state’s case. . . . [A] reviewing court
must apply the Williams factors to the entire trial,
because there is no way to determine whether the defen-
dant was deprived of his right to a fair trial unless the
[impropriety] is viewed in light of the entire trial. . . .
The question of whether the defendant has been preju-
diced by prosecutorial [impropriety] . . . depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Sinclair, 332 Conn. 204,
236–37, 210 A.3d 509 (2019).
‘‘We are mindful throughout this inquiry, however,
of the unique responsibilities of the prosecutor in our
judicial system. A prosecutor is not only an officer of
the court, like every other attorney, but is also a high
public officer, representing the people of the [s]tate,
who seek impartial justice for the guilty as much as for
the innocent. . . . By reason of his [or her] office, [the
prosecutor] usually exercises great influence [on]
jurors. [The prosecutor’s] conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he [or she] repre-
sents the public interest, which demands no victim and
asks no conviction through the aid of passion, prejudice
or resentment. . . . That is not to say, however, that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . . Indeed, this
court give[s] the jury the credit of being able to differen-
tiate between argument on the evidence and attempts
to persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.
The state’s attorney should not be put in the rhetorical
straitjacket of always using the passive voice, or contin-
ually emphasizing that he is simply saying I submit to
you that this is what the evidence shows, or the like.’’
(Citations omitted; internal quotation marks omitted.)
State v. Wilson, 308 Conn. 412, 435, 64 A.3d 91 (2013).
In addressing claims of improper vouching, our
Supreme Court has explained that ‘‘it is improper for a
prosecuting attorney to express his or her own opinion,
directly or indirectly, as to the credibility of witnesses.
. . . [H]owever . . . [i]t is not improper for the prose-
cutor to comment [on] the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Fauci, 282 Conn. 23, 47, 917
A.2d 978 (2007). ‘‘In claims of improper vouching, our
Supreme Court has noted that the degree to which a
challenged statement is supported by the evidence is
an important factor in determining the propriety of that
statement. The Supreme Court [has] stated that [a] pros-
ecutor may properly comment on the credibility of a
witness where . . . the comment reflects reasonable
inferences from the evidence adduced at trial.’’ (Internal
quotation marks omitted.) State v. Luther, 114 Conn.
App. 799, 812, 971 A.2d 781, cert. denied, 293 Conn. 907,
978 A.2d 1112 (2009).
We reject the defendant’s claim that the prosecutor’s
redirect examination of Dunning suggested to the jury
that, while relying on facts outside of the evidence, the
prosecutor had injected his personal belief that Dunning
was truthful. In the portions of the redirect examination
on which the defendant focuses, the prosecutor elicited
testimony from Dunning that his plea agreement was
contingent on his testifying truthfully, he did not enter
into the plea agreement until the month prior to the
defendant’s trial, he did not tell anyone from the state or
the prosecutor’s office that he had entered the victim’s
residence until the month prior to the defendant’s trial,
and the plea agreement was not finalized until he admit-
ted that he had entered the victim’s residence. We
observe that this line of questioning directly followed
the defendant’s cross-examination of Dunning, during
which defense counsel asked Dunning about the plea
agreement and to explain why he had waited so long
following his arrest to enter a guilty plea, and why, in
his statements to the police, he had been untruthful
about having entered the victim’s residence with the
defendant and Le.
Further, we conclude that there was an evidentiary
basis for all of the prosecutor’s questions. During Dun-
ning’s direct examination, without any objection, the
plea agreement was admitted into evidence. It plainly
stated that the consideration being promised to Dun-
ning by the state was contingent on a finding by the
sentencing judge that Dunning had testified truthfully.
The timing of the plea agreement, which was signed on
March 17, 2017, was readily apparent to the jury, as
well. The agreement was not entered into until shortly
before the defendant’s trial, which began on March 29,
2017. The inquiries or testimony with respect to the
fact that Dunning did not tell anyone from the state or
the prosecutor’s office that he had entered the victim’s
residence until the month prior to the defendant’s trial
and that the plea agreement was not finalized until he
admitted that he had entered the victim’s residence
hardly suggested, as the defendant argues presently,
that the prosecutor had ‘‘verified [Dunning’s] veracity’’
by using a litmus test that was hidden from the jury.
Instead, the reason for the state’s willingness to enter
into the agreement was readily apparent and based on
the evidence. Specifically, during the victim’s testi-
mony, which preceded Dunning’s testimony, he testified
that three masked men had approached him as he was
entering his residence, had held him at gunpoint, had
ransacked his residence, and had left his residence with
many of his possessions. Immediately after asking Dun-
ning about the timing of the agreement, the prosecutor
asked him whether he was aware from the police
reports in this case that ‘‘the victim was always claiming
three people went in the house,’’ to which Dunning
replied, ‘‘[a]s far as I know he said three people were
in the house.’’
The elicited testimony from the victim and Dunning
strongly suggested that the state did not enter into the
agreement until after Dunning’s version of events was
consistent with the victim’s version of events. Because
the prosecutor’s inquiry was based on the evidence and
did not suggest that the prosecutor was vouching for
Dunning on the basis of facts that did not appear in the
record, we conclude that the inquiry was not improper.
Next, we turn to the challenged remarks made by
the prosecutor during the state’s rebuttal closing argu-
ments. To a great extent, the defendant challenges the
propriety of the prosecutor’s references to the terms of
the plea agreement, which was admitted into evidence
without any objection. Essentially, the defendant argues
that, by referring to the fact that the plea agreement
required Judge Dooley to make a determination of Dun-
ning’s credibility, the prosecutor either attempted to
persuade the jury that the court already had found Dun-
ning to be credible or that he suggested that the court,
and not the jury, was the arbiter of Dunning’s credibility.
We conclude, however, that the challenged argument
was based on the evidence. The plea agreement pro-
vides that Dunning ‘‘is to cooperate completely and
truthfully in any investigations, hearings, or trials relat-
ing to [the defendant], including the giving of truthful
sworn testimony.’’ Additionally, the agreement provides
that Dunning ‘‘understands that the ultimate decision
regarding the sentence he receives will be made by
the sentencing judge, the Honorable Kari Dooley, after
consideration of the credibility of his testimony . . . .’’
Nothing about the prosecutor’s arguments suggested
that, at the time of the trial, the court had made any
type of finding concerning Dunning’s credibility. Nor
did the arguments suggest that the prosecutor had a
personally held opinion concerning Dunning’s credibil-
ity. To the contrary, the prosecutor did not stray from
the terms of the plea agreement by informing the jury
that, with respect to the issue of whether Dunning
would be entitled to the benefit of the agreement he
reached with the state, it was up to Judge Dooley to
determine if he was credible and to impose an appro-
priate sentence.11 The prosecutor explicitly stated, in
accordance with the agreement, that these decisions
with respect to Dunning were not based on his personal
recommendation. Moreover, it belies a rational interpre-
tation of the prosecutor’s arguments concerning Dun-
ning, which were an obvious attempt to persuade the
jury that it should conclude that Dunning was a credible
witness, to suggest that the prosecutor had attempted
to persuade the jury that it was not required to evaluate
Dunning’s credibility because the court would do so.12
The defendant’s arguments also focus on what he
considers to be an attempt by the prosecutor to inject
the prosecutor’s credibility into the trial. According to
the defendant, the prosecutor’s arguments concerning
Dunning intertwined an assessment of Dunning’s credi-
bility with the prosecutor’s own credibility and integ-
rity. For the reasons we already have discussed, we
interpret the prosecutor’s arguments as properly limited
to the evidence and the rational inferences to be drawn
therefrom. At no point did the prosecutor ask the jury,
as the defendant suggests, ‘‘to trust his professional
judgment and integrity in deciding when to make an
offer to Dunning.’’ The argument with respect to the
plea offer was based on the evidence and, in particular,
the testimony that the offer was made only after Dun-
ning presented the state with a version of events that
was consistent with the victim’s version of events and,
thus, accurately reflected his involvement in the
home invasion.
The prosecutor did not mischaracterize the argu-
ments advanced by defense counsel that the state had
‘‘bought and sold’’ Dunning’s testimony and that the
prosecutor was ‘‘supporting perjury.’’ The prosecutor
properly attempted to refute these challenges to Dun-
ning’s testimony by arguing that because the plea agree-
ment was contingent on his testifying credibly, it did
not logically provide Dunning with a motive to be
untruthful in this case. ‘‘[T]he state may argue that its
witnesses testified credibly, if such an argument is
based on reasonable inferences drawn from the evi-
dence. . . . Specifically, the state may argue that a wit-
ness has no motive to lie.’’ (Citation omitted.) State v.
Warholic, 278 Conn. 354, 365, 897 A.2d 569 (2006). In
addition, it was within the bounds of fair argument
for the prosecutor to have attempted to refute defense
counsel’s arguments by referring in detail to the evi-
dence that, in his view, supported a finding that Dunning
had testified credibly. ‘‘A prosecutor may urge the jury
to find for stated reasons that a witness was truthful
or untruthful. . . . A prosecutor may also remark on
the motives that a witness may have to lie, or not to
lie, as the case may be. . . . The distinguishing charac-
teristic of impropriety in this circumstance is whether
the prosecutor asks the jury to believe the testimony
of the state’s witnesses because the state thinks it is
true, on the one hand, or whether the prosecutor asks
the jury to believe it because logic reasonably thus
dictates.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Felix, 111 Conn. App.
801, 811–12, 961 A.2d 458 (2008). At no point in his
argument did the prosecutor either expressly or inferen-
tially invite the jury to simply rely on his assessment
of the evidence or to trust a personally held belief on
his part that Dunning was credible. It is unreasonable
to interpret the challenged arguments to suggest that
the prosecutor invited the jury to rely on anything other
than its own evaluation of Dunning’s testimony based
on the evidence and the rational inferences to be
drawn therefrom.13
Finally, the defendant argues that the prosecutor
vouched for Dunning by suggesting that, by testifying,
he risked being prosecuted for perjury. The defendant
asserts that the argument was improper because the
prosecutor suggested ‘‘that [he] knows if the witness
is telling the truth or implie[d] that he possessed infor-
mation not presented to the jury that would enable him
to know if the witness were lying.’’ This argument is
not persuasive. For the reasons set forth previously in
our analysis of the present claim, we disagree that the
prosecutor’s arguments concerning Dunning’s testi-
mony reasonably could be construed to suggest that
they were based on anything other than the evidence
before the jury, including but not limited to, the testi-
mony of the victim that all three perpetrators had
entered his residence.
The defendant’s claim fails because he has not dem-
onstrated that the prosecutor’s redirect examination of
Dunning or his rebuttal closing argument constituted
impermissible vouching for Dunning. Accordingly, we
need not engage in an analysis of the Williams factors
to determine whether the alleged improprieties
deprived him of a fair trial.
II
Next, the defendant claims that the court improperly
denied his motion to suppress evidence that was seized
pursuant to a search warrant that was not supported
by probable cause. We disagree.
It is not in dispute that, on July 30, 2013, the court,
Ginocchio, J., granted an application for a warrant to
search the defendant’s residence14 and to seize any of
the items that were described in the warrant application
as either having been removed from the victim’s resi-
dence or used or worn by the defendant during the
commission of the home invasion. As a result of the
execution of the warrant, the police seized several
items, including a box of 20 gauge shotgun shells and
a black ski mask. In applying for an arrest warrant, the
police relied, in part, on items that were seized from
the defendant’s residence, and evidence of the fact that
the police had seized items from the defendant’s resi-
dence, including the shotgun shells and the ski mask,
was admitted at trial.
The defendant filed several motions before the trial
court in which he challenged the validity of the search
warrant. We will discuss these motions because the
defendant asserts that they adequately preserved the
claim at issue because the court, in its resolution of
the motions, addressed the issue of whether the search
warrant was supported by probable cause.
Prior to trial, the defendant, at that time a self-repre-
sented litigant, filed two motions for a Franks hearing15
in which, in relevant part, he asked the court to suppress
evidence seized from his residence on the ground that
the affidavit submitted to the court in support of the
search warrant application contained false or incom-
plete information.16 On April 29, 2016, the court,
Danaher, J., held a hearing on the defendant’s motions.
The court stated that, during oral argument in support
of his motions, the defendant argued that the affidavit
in support of the search warrant contained inaccurate
statements. The defendant argued that (1) the allegation
concerning the amount of cash taken from the victim
was not accurate, (2) the allegation that he cashed sto-
len coins at the supermarket was false because,
according to his review of the store surveillance video,
he does not appear therein, (3) the allegation concern-
ing the value of all items taken from the victim was,
on the basis of his ‘‘findings,’’ not accurate, and (4) the
allegation that Le had used the victim’s credit card at
the store is not accurate because the alleged use of the
card did not occur at ‘‘the exact time’’ reflected in the
surveillance video.
The court observed: ‘‘The defendant further argued
that the same misrepresentations appear in the arrest
warrant, and in addition, paragraph 71 of that warrant
is subject to challenge in that (1) the allegation that
two people are friends on Facebook and that they
entered and exited a store, does not constitute probable
cause, and (2) the affiants were reckless in describing
codefendant . . . Le’s address as 29 Footpath Lane
when, in fact, it was the defendant and not . . . Le
who lived at that address.’’
The court referred to the fact that the defendant had
submitted five exhibits, which included three reports
that reflect Le’s address; an inventory of items seized
from the defendant’s residence; a portion of the search
warrant application being challenged; ‘‘a copy of e-mail
traffic reflecting information about a ‘denied credit card
transaction,’ apparently at a Stop [&] Shop store, on
April 8, 2013, at approximately 10:46 a.m., for a credit
card ending in 2561’’; and a Coinstar machine17 receipt
from the Stop & Shop store in East Hartford showing
that the coins deposited amounted to $68.75 and that
a processing fee of $6.74 was deducted from this total
amount, resulting in a cash value of $62.01.
After setting forth relevant legal principles, the court,
in its written memorandum of decision, set forth the
following analysis with respect to the defendant’s
Franks challenge to the search warrant:18 ‘‘The defen-
dant failed to offer either affidavits or sworn or other-
wise reliable statements of witnesses in support of his
motion, nor did he explain his failure to produce such
evidence. He simply represented that certain allegations
in [the] . . . search warrant affidavit were not correct.
The defendant’s representation that paragraph 36 [of
the search warrant affidavit] does not accurately
recount the amount of cash taken, and that the value
of all items taken [is inaccurate] not only is an unsworn
claim, but it is also insufficient to overturn the finding
of probable cause, as is the unsworn claim that the
‘exact time’ that a codefendant ‘swiped a stolen credit
card’ is incorrect. Similarly, the defendant’s claim that
he was not one of the people depicted in a surveillance
video is also an unsworn claim and so cannot serve to
support the defendant’s motion.
‘‘The court also recognizes that even if the defendant
were to make a substantial preliminary showing that
the affidavits at issue include false statements, made
knowingly and intentionally or with reckless disregard
for the truth, the defendant cannot prevail on his motion
if the statements at issue are not necessary to the finding
of probable cause. . . .
‘‘Even if the defendant had properly supported his
motion with sworn affidavits and the court were to
exclude the allegations challenged by the defendant,
the court finds that there was ample alternative proba-
ble cause evidence. For example, the affidavit asserts
that a vase containing loose change was taken [from
the victim]. . . . The approximate amount of loose
change taken in the robbery was thereafter allegedly
deposited at a Stop [&] Shop store in a Coinstar
machine, the amount deposited was consistent with the
amount stolen, the Stop [&] Shop activity was recorded
[by means of] a surveillance camera, and two educators
from the Woodland School, where the defendant
attended school, positively identified the defendant in
the surveillance camera recording. . . . In addition,
the affidavit alleges that the defendant is associated
with two other individuals, Le and . . . Dunning, and
that there is independent probable cause that Le and
Dunning were involved in the home invasion. The fore-
going allegations, alone, establish probable cause suffi-
cient to issue the search warrant that the defendant
challenges.
‘‘The defendant also argued that the affiants were
reckless in asserting that Le lived at 29 Footpath Lane,
East Hartford, the location to be searched. The defen-
dant’s representations are unsworn and, even if they
were properly authenticated, they do not preclude a
finding of probable cause. Even if the affiants had
asserted that . . . Le lived elsewhere, the affiants set
forth the basis for their assertion that the defendant
resided at 29 Footpath Lane . . . and the independent
evidence of the defendant’s involvement in the robbery
supports a finding of probable cause that there was
evidence to be found at the location where the defen-
dant resided, regardless of whether Le also lived at that
same address.’’ (Citations omitted; emphasis in original;
footnote omitted.) Thereafter, the court denied the
motion.
Following the court’s ruling, the defendant, appearing
as a self-represented litigant, filed a motion to suppress
any and all evidence seized from his residence. Among
the arguments raised therein, the defendant argued that
‘‘[t]here was no fair probability that contraband or evi-
dence of a crime [would] be found at [his] residence,’’
the facts stated in the warrant application were made
‘‘[falsely] and/or in reckless disregard for the truth
knowingly and intentionally, for the purpose of mis-
leading a judge,’’ the property seized was not described
in the warrant, and ‘‘there was no probable cause for
believing the existence of the grounds on which the
warrant was issued.’’
On June 28, 2016, the court, Danaher, J., held a hear-
ing on the motion. The court provided an oral ruling
on the motion by observing that the substance of most
of the arguments presented by the defendant were pre-
viously raised in the context of the defendant’s motions
for a Franks hearing, and the court relied on its earlier
ruling denying those motions. The court observed, how-
ever, that the defendant raised an additional claim in
the context of the motion to suppress, which was that
the police had acted outside of the authority granted
to them by the search warrant by seizing from the resi-
dence ‘‘his safe.’’ The court referred to various legal
authorities for the proposition that, ‘‘when conducting
a search pursuant to a valid warrant, police are entitled
to search containers that could logically hold the item
or items sought.’’ The court stated: ‘‘In this case, the
warrant permitted the officers to search for and seize
small items such as $200 in cash, memory disks . . .
for a digital camera, and a gold watch. Those items,
which were contained in the warrant, could logically
be concealed in the container/safe that was located on
the defendant’s property. And the police were entitled
to search inside that container, particularly since the
defendant’s brothers identified the safe as belonging to
this defendant.
‘‘Once the safe was opened and was found to contain
contraband specifically described in the warrant, in this
case, stolen shotgun shells, the safe, itself, constituted
evidence of consciousness of guilt and so was properly
subject to seizure.’’
The court further explained its ruling, as follows:
‘‘Consistently throughout the defendant’s argument,
there is a disagreement with certain specific facts that
are set forth in the [affidavit] at issue. Again, there’s
no factual basis that would permit me to conclude that
the allegations in the affidavit are in error. But, beyond
that . . . it’s necessary for any judge, in reviewing a
warrant and determining whether probable cause is
present, to review the totality of the warrant. The war-
rant is reviewed within . . . the four corners. And, in
putting all those facts together, the court makes a deter-
mination as to whether probable cause exists.
‘‘One example, the defendant indicated . . . that
[the allegation that he entered and left] a Stop [&] Shop
is not probable cause of a crime, and that’s true. But,
those facts are not looked at in isolation; they’re looked
at in conjunction with the fact that, not very long after
the robbery . . . the defendant was [accompanying Le
in the supermarket and] . . . there was substantial evi-
dence [that Le] was involved in the robbery. And . . .
Le [pleaded guilty] in connection with [the home inva-
sion] . . . [a]nd has been convicted of . . . carrying
out this home invasion. . . .
‘‘I’ve reviewed the affidavit; I’ve read it in its entirety.
And I have concluded, more than once, that there was
probable cause to support the search.’’ Relying on the
foregoing reasons, the court denied the motion to
suppress.19
Presently, the defendant claims that the search war-
rant was not based on probable cause for two broad
reasons. First, the defendant argues that, even if there
was probable cause to believe that he possessed some
of the victim’s belongings at the time that the robbery
occurred, the facts presented in support of the search
warrant were insufficient to demonstrate that he would
have retained the victim’s stolen property, for four
months following the home invasion, in his residence
that was searched. Second, the defendant argues that
the facts set forth in the search warrant application
were insufficient to demonstrate that he was a partici-
pant in the home invasion. The defendant argues that
the facts presented merely demonstrated that he was
a friend of Le on the social media website ‘‘Facebook’’
and that he and Le were at a supermarket together on
the morning following the home invasion.
As we have discussed previously, the defendant
raised several motions before the trial court in which
he argued that the search warrant application contained
false or incomplete information and asked the court to
suppress evidence obtained as a result of the search of
his residence. It appears that, in general terms, the
court interpreted these motions as having raised issues
concerning false or incomplete information in the war-
rant application and, in rejecting those claims, stated
in general terms that the facts presented were sufficient
to demonstrate probable cause to search the residence.
It does not appear that the defendant distinctly pre-
sented or that the court squarely addressed the argu-
ments presented here, which are unrelated to an allega-
tion of false or incomplete information in the search
warrant application. To the extent that the defendant’s
claim is unpreserved, we may review it pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015), as the defendant requests in
his appellate brief.20 The record provides this court with
an adequate basis to review the claim because it con-
tains the materials presented to Judge Ginocchio when
he granted the search warrant application. The claim
is of constitutional magnitude in that it seeks to vindi-
cate the defendant’s fourth amendment right to be free
from an unreasonable search.
‘‘Whether the trial court properly found that the facts
submitted were enough to support a finding of probable
cause is a question of law. . . . Accordingly, [o]ur
review of the question of whether an affidavit in support
of an application for a search [and seizure] warrant
provides probable cause for the issuance of the warrant
is plenary. . . .
‘‘Both the fourth amendment to the United States
constitution and article first, § 7, of the Connecticut
constitution prescribe that a search warrant shall issue
only upon a showing of probable cause. Probable cause
to search exists if . . . (1) there is probable cause to
believe that the particular items sought to be seized
are connected with criminal activity or will assist in a
particular apprehension or conviction . . . and (2)
there is probable cause to believe that the items sought
to be seized will be found in the place to be searched.
. . . Although [p]roof of probable cause requires less
than proof by a preponderance of the evidence . . .
[f]indings of probable cause do not lend themselves to
any uniform formula because probable cause is a fluid
concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even use-
fully, reduced to a neat set of legal rules. . . . Conse-
quently, [i]n determining the existence of probable
cause to search, the issuing [judge] assesses all of the
information set forth in the warrant affidavit and should
make a practical, nontechnical decision whether . . .
there is a fair probability that contraband or evidence
of a crime will be found in a particular place. . . . The
determination of probable cause is reached by applying
a totality of the circumstances test. . . .
‘‘The role of an appellate court reviewing the validity
of a warrant is to determine whether the affidavit at
issue presented a substantial factual basis for the [issu-
ing judge’s] conclusion that probable cause existed.
. . . [Our Supreme Court] has recognized that because
of our constitutional preference for a judicial determi-
nation of probable cause, and mindful of the fact that
[r]easonable minds may disagree as to whether a partic-
ular [set of facts] establishes probable cause . . . we
evaluate the information contained in the affidavit in
the light most favorable to upholding the issuing
judge’s probable cause finding. . . . We therefore
review the issuance of a warrant with deference to the
reasonable inferences that the issuing judge could have
and did draw . . . . In evaluating whether the warrant
was predicated on probable cause, a reviewing court
may consider only the information set forth in the four
corners of the affidavit that was presented to the issuing
judge and the reasonable inferences to be drawn there-
from. . . .
‘‘Of course, [t]he determination of probable cause to
conduct a search depends in part on the finding of facts
so closely related to the time of the issuance of the
warrant as to justify a belief in the continued existence
of probable cause at that time. . . . Although it is rea-
sonable to infer that probable cause dwindles as time
passes, no single rule can be applied to determine when
information has become too old to be reliable. . . .
Consequently, whether a reasonable likelihood exists
that evidence identified in the warrant affidavit will be
found on the subject premises is a determination that
must be made on a case-by-case basis. Accordingly, we
have refused to adopt an arbitrary cutoff date,
expressed either in days, weeks or months, beyond
which probable cause ceases to exist. . . . The likeli-
hood that the evidence sought is still in place depends
on a number of variables, such as the nature of the
crime, of the criminal, of the thing to be seized, and of
the place to be searched. . . . [W]hen an activity is of
a protracted and continuous nature the passage of time
becomes less significant.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) State v.
Hanisko, 187 Conn. App. 237, 245–48, 202 A.3d 375
(2019).
‘‘[T]he resolution of doubtful or marginal cases . . .
should be largely determined by the preference to be
accorded to warrants. . . . Furthermore, [a] reviewing
court should not invalidate a warrant as long as the
inferences drawn by the issuing magistrate are reason-
able under all of the circumstances set forth in the
affidavit regardless of whether that court would have
drawn the same inferences.’’ (Citation omitted; internal
quotation marks omitted.) State v. Martinez, 51 Conn.
App. 59, 66–67, 719 A.2d 1213, cert. denied, 247 Conn.
952, 723 A.2d 324 (1998).
First, we address the argument that the affidavit did
not provide probable cause to believe that the items
sought to be seized would be found in the defendant’s
residence four months following the commission of the
home invasion. Among the averments in the thirty-seven
paragraph affidavit, dated July 30, 2013, and sworn to
and submitted by State Police Detectives Laura Kraus
and Jeremy Combes,21 were facts concerning the home
invasion, including the fact that the victim described
three male perpetrators, all of whom were wearing dark
clothing and dark knit caps during the incident. The
affidavit detailed the items taken from the victim,
including but not limited to his credit and ATM cards,
camera equipment, a leather jacket, a large ceramic vase
containing coins, firearms, ammunition, and a knife.
The affidavit further provided that the defendant,
who had a criminal history involving firearms, was
believed to reside at 29 Footpath Lane in East Hartford.
He was identified in an East Hartford supermarket sur-
veillance video from the morning of April 8, 2018. The
officers averred that the defendant was accompanied
by Le in the supermarket. The defendant was seen cash-
ing a receipt for $62.01, which he obtained from a coin
exchange machine. The officers averred that this
amount and the $6.74 fee that is automatically deducted
by the coin exchange machine was close to the estimate
of the value of the coins taken during the home invasion.
At the same time, Le was seen attempting to use the
victim’s stolen credit card at a cash register. Thereafter,
before the two men left the store together, the video
shows that the defendant and Le walked to the customer
service desk, and the defendant handed a cashier a
lottery ticket and exchanged a twenty dollar bill for
smaller denomination currency. The affidavit also
reflected that a review of the defendant’s Facebook
page indicated that he and Le were friends.
There were several averments concerning Le in the
affidavit, including the fact that he had a criminal his-
tory and that, in June, 2013, an East Hartford police
officer stopped Le in the course of investigating a motor
vehicle complaint. During a search of the vehicle Le
was operating, the police found shotgun rounds and a
hunting knife, all of which the victim readily identified
as having been taken from him during the home inva-
sion. Le’s arrest for crimes related to the home inva-
sion followed.
Additionally, the affidavit provided as follows:
‘‘[B]ased upon the affiants’ training and experience, the
affiants know that it is common for people traveling to
other locations, potentially unfamiliar to them, to utilize
a GPS device in order to obtain directions to that loca-
tion. Suspects involved in the planning, coordination
and execution of a conspiracy utilize cell phones to
communicate their plans and activities either through
voice contact or SMS (text) messaging. Your [a]ffiants
know that many people carry and use cellular phones
as a part of daily life while traveling, including victims
and suspects. The affiants know that crimes involving
multiple suspects would necessitate communication
between them, and that it is reasonable to believe that
such communication would take place prior to the
crime (pre-planning stage), during the crime (execution
stage), and after the crime (cover-up/flight stage). It is
also reasonable that the suspects may have used cellular
devices to contact each other in order the execute the
details of the crime.’’
The affidavit further stated: ‘‘[B]ased upon the affi-
ants’ training and experience, the affiants know that
persons involved in criminal activity will often elicit
the aid of an accomplice to facilitate the commission
of a crime. That dependent upon the complexity of the
criminal endeavor, pre-planning, and after the execu-
tion of the crime(s) persons will frequently change their
place of residence to inhibit the discovery of their activ-
ity or . . . use multiple addresses, particularly of their
families, to secret[e] evidence of the crimes they are
involved in, including firearms/weapons and burglary
tools used in the crime. That persons involved in crimi-
nal activity who steal large quantities of items will often
hold onto the stolen items for a long period of time.
Persons involved in criminal activity are aware that
police officers check pawn shops for stolen items fre-
quently and will often sell, pawn, and/or disperse the
stolen items in small quantities over a long period of
time in an attempt to inhibit the discovery of evidence
of their crimes. Persons involved in criminal activity
will often keep stolen items as a trophy of their crimes
for days, months, and even years. Persons involved in
criminal activities also give stolen items to close friends
and/or family members as gifts. That based on the pat-
terns of conduct exhibited by . . . Le as it is known
to the affiants it is likely . . . Le was engaged in similar
actions that are intended to inhibit efforts of law
enforcement to discover him or evidence to support
his role in criminal activity. . . .
‘‘[B]ased upon the aforementioned facts and circum-
stances, the affiants have probable cause to believe that
. . . Le did participate in a home [invasion at the vic-
tim’s residence] . . . . That the total estimated value
of items taken including cash from the victim’s bank
accounts, wallet, and loose coin total approximately
$29,163.52. That [the defendant] and . . . Le are
friends on Facebook. That Stop & Shop surveillance
video shows that [the defendant] and . . . Le enter and
exit the store together. That . . . Le attempted to use
[the victim’s] stolen Bank of America card in Stop &
Shop in East Hartford on [April 8, 2013], at approxi-
mately 10:46 a.m. That [the defendant] cashed in coins
in the Stop & Shop Coinstar machine. That evidence
of this will be found at [the defendant’s residence],
which will establish probable cause for the crimes of
home invasion . . . kidnapping in the first degree . . .
threatening . . . robbery in the first degree . . . lar-
ceny in the first degree . . . [and] burglary in the first
degree . . . .’’ Among the items that were the subject
of the search warrant were the victim’s belongings that
were taken from his residence, articles of clothing that
were consistent with those worn by the suspects, and
‘‘cell phones and GPS devices.’’
On the basis of the foregoing facts as set forth in the
affidavit, as well as the reasonable inferences to be
drawn therefrom, there was probable cause to conclude
that items connected with the invasion of the victim’s
residence would be found in the defendant’s residence
on July 30, 2013. The defendant argues that the affidavit
lacked any averments to support a finding that he had
a personal interest in the items taken from the victim’s
residence or whether or how the suspects divided the
items taken during the home invasion. Likewise, he
argues that there were no facts alleged to support a
finding that he would keep any items related to the
home invasion for four months.
Because the affidavit set forth facts that either impli-
cated the defendant as a participant in the commission
of the home invasion or as being connected to Le, who
was a participant in the home invasion, shortly after
the home invasion occurred, it was reasonable to infer
that the defendant may have possessed items taken
from the victim or that he possessed devices, such as
a cell phone, that would have been used in the commis-
sion of the crime.
Furthermore, on the basis of the averments set forth
in the affidavit, it was reasonable to believe that the
defendant would have possessed these items four
months following the commission of the crime. In light
of the averments concerning the use of cell phones or
GPS devices by criminals, as well as the reasonable
inference that these types of devices typically are
retained and used for months or years, it was not unrea-
sonable to infer that, four months after the home inva-
sion, the defendant probably possessed a cell phone or
a GPS device that he had possessed at the time that
the crime occurred. It was also reasonable to believe
that, at the time that the warrant application was pre-
sented to Judge Ginocchio, the defendant still would
have possessed the types of items that were removed
at gunpoint from the victim’s residence. The affiants
stated that criminals who steal many items divide them
among themselves, may retain them for ‘‘days, months,
and even years’’ following the crime, and may transfer
possession of items to friends and family members.
The issuing judge reasonably could have relied on the
training, experience, and expertise of the affiants in
this regard. In light of the variety of items taken, it was
reasonable to suspect that one or more of them would
be kept by the defendant in his residence. In light of the
averments set forth in the warrant application, probable
cause was not dependent on a showing that the defen-
dant was engaged in a continuing criminal enterprise.
Accordingly, we are not persuaded that probable cause
was lacking due to the four months that transpired
between the commission of the crime and the issuance
of the search warrant.
Finally, we address the defendant’s contention that
‘‘[t]he affidavit . . . did not show a nexus between Le
and [him] to suggest that [he] was a participant in the
robbery.’’ The defendant attempts to persuade us that
the facts in the affidavit concerning his friendship with
Le and his presence with Le at the supermarket on the
morning following the home invasion reflected innocent
behavior that did not give rise to a suspicion that he
was a participant in the home invasion. Moreover, the
defendant attempts to downplay the significance of the
fact that the surveillance video from the supermarket
depicted him cashing in a coin exchange machine
receipt. As the defendant argues, ‘‘[c]oins are fungible
items. Many people collect spare change in containers
and cash it in in large quantities . . . . Nor does the
affidavit make any representation about whether $68
worth of coins is an unusual sum at a Coinstar machine.’’
The defendant’s arguments are not persuasive. ‘‘[I]t
is axiomatic that [a] significantly lower quant[um] of
proof is required to establish probable cause [rather]
than guilt. . . . [P]robable cause requires only a proba-
bility or substantial chance of criminal activity, not an
actual showing of such activity. By hypothesis, there-
fore, innocent behavior frequently will provide the basis
for a showing of probable cause; to require otherwise
would be to sub silentio impose a drastically more rigor-
ous definition of probable cause than the security of
our [citizens] . . . demands. . . . In making a deter-
mination of probable cause the relevant inquiry is not
whether particular conduct is innocent or guilty, but
the degree of suspicion that attaches to particular types
of noncriminal acts.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Batts, 281 Conn. 682, 701,
916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S. Ct. 667,
169 L. Ed. 2d 524 (2007). In light of other facts set
forth in the affidavit, it was reasonable to infer that the
defendant’s act of exchanging coins by means of the
Coinstar machine was suspicious and tended to give rise
to probable cause that he possessed evidence related
to the home invasion. The affidavit reflected that the
defendant was accompanied in the supermarket by Le,
a person who was identified as a suspect in the home
invasion. The video supported a finding that the defen-
dant had cashed approximately $68 in coins. The victim
reported that, only hours earlier, between $75 and $100
in coins was taken from his residence by three men,
all of whom had concealed their identity from him.
While the defendant was cashing in the receipt for the
coins, Le was at a cash register attempting to use the
victim’s stolen credit card.
Additionally, it suffices to observe that the premise
of the defendant’s argument is unsound. At issue is the
validity of a search warrant, not an arrest warrant. A
finding of probable cause to search did not depend on
facts in the affidavit that tended to demonstrate that
the defendant was a perpetrator of the home invasion.
The affiants presented facts that gave rise to a probabil-
ity of his being in possession of items connected with
the home invasion due to his participation in the crimi-
nal endeavor or due to his relationship with and his
activities with Le, who was portrayed as a suspect in
the crime, within hours of the commission of the crime.
On the basis of our review of all of the facts in the
affidavit, we disagree that probable cause was lacking.
Accordingly, the defendant’s claim fails under Golding’s
third prong because he has failed to demonstrate that
a constitutional violation exists and that it deprived him
of a fair trial.22
The judgment is affirmed.
In this opinion the other judges concurred.
1
By means of a special interrogatory submitted to the jury, the jury found
that the defendant committed the crimes of home invasion and robbery
with the use of a firearm in violation of General Statutes § 53-202k. The
defendant received a total effective sentence of thirty years of incarceration,
execution suspended after twenty years, followed by five years of probation.
2
In several telephone conversations, the defendant made statements while
incarcerated that tended to implicate him in the home invasion. Two months
prior to his release, the defendant had a telephone conversation with his
mother in which they discussed financial matters. During the conversation,
the defendant stated, ‘‘I’m coming across a bunch of money when I get out,
that’s why I gotta get out.’’ In a telephone conversation with Le that took
place on March 23, 2013, the defendant referred to his imminent release
from prison. He stated that Dunning was going to be ‘‘ready’’ and that he
would tell Dunning that Le had ‘‘everything set up.’’ In a telephone conversa-
tion with his father that occurred on February 7, 2015, while he was incarcer-
ated and awaiting trial, the defendant stated that he had his upcoming case
‘‘in the palm of his hand.’’ The defendant, revealing his knowledge of the
crime, also stated that Le, who had accepted a guilty plea, had ‘‘copped
out’’ and was ‘‘the mastermind.’’
3
Approximately one hour after the defendant, Le, and Dunning left the
crime scene, Dunning used the victim’s ATM card at an ATM in Hartford.
At 2:20 a.m., on April 8, 2013, one of the perpetrators used the victim’s
credit card at a gas station in Manchester. Later in the morning of April 8,
2013, Le, who was accompanied by the defendant, attempted to use the
victim’s credit card at a supermarket in East Hartford.
4
The shotgun shells, as well as a black ski mask, were discovered in the
defendant’s bedroom and seized by the police during a subsequent search
of his residence in East Hartford.
5
Surveillance video from a supermarket in East Hartford showed that,
during the morning of April 8, 2013, the defendant, who was accompanied
by Le, deposited approximately $68 in a coin exchange machine, resulting
in a receipt in the amount of $62.01. During the police investigation of this
case and police questioning of the defendant, the defendant initially ‘‘denied
hanging out’’ with Le and told police investigators that he was not at the
supermarket with Le on April 8, 2013. After the police told the defendant
that witnesses had identified him as being at the supermarket at that time,
the defendant told the police that, at Le’s request, he had accompanied Le
to the supermarket, Le had exchanged coins at the supermarket, and Le
had given him some money.
6
The police later found a pair of gloves in the victim’s yard. DNA testing
of the gloves supported a finding that they had been handled by Dunning
and the defendant’s brother, with whom the defendant resided at the time of
the events underlying this appeal. Prior to the home invasion, the defendant
purchased the gloves and provided them to Dunning.
7
Donald Lavery, a correctional officer, testified that the phrase ‘‘putting
hands [on]’’ is synonymous with assault.
8
Although the defendant did not raise this claim before the trial court,
we may review it because, ‘‘under settled law, a defendant who fails to
preserve claims of prosecutorial [impropriety] need not seek to prevail under
the specific requirements of State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to
apply the four-pronged Golding test.’’ (Internal quotation marks omitted.)
State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).
9
Initially, Dunning testified that he alone held the victim at gunpoint
during the home invasion. Later, he testified, consistent with the victim’s
testimony, that he had joined Le and the defendant in searching the victim’s
residence for valuables.
10
According to Dunning, he was charged initially with ‘‘home invasion,
burglary one, robbery one, larceny one, threatening one, [and] kidnap-
ping one.’’
11
Part of the defendant’s claim on appeal is based on the fact that Judge
Dooley’s name appeared in the plea agreement, thereby reflecting that she
would be required to determine whether Dunning had testified credibly.
The defendant observes that ‘‘[t]he parties should have redacted the name
of the sentencing judge from the plea agreement,’’ but, nonetheless, states
that he is not raising an independent claim related to their failure to do so.
It suffices to observe that the prosecutor did not engage in improper argu-
ment by referring accurately to an agreement that was in evidence, nor did
he invite the jury to draw an unreasonable inference from the agreement.
To the extent that the defendant urges this court, in the exercise of its
supervisory powers over the administration of justice; see, e.g., State v.
Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009) (discussing supervisory
authority); to require courts ‘‘to redact portions of a cooperation agreement
to reduce any implicit vouching and provide appropriate guidance to future
litigants and judges,’’ we decline to do so. We are not persuaded that tradi-
tional protections afforded to defendants, which encompass the right to
object to exhibits presented by the state and to request appropriate redac-
tions, do not adequately protect a defendant’s rights with respect to the
issue raised in the present claim.
12
We further observe that, in its jury charge, the court instructed the jury
in relevant part that the court’s role was to state the rules of law, the jurors
were ‘‘the sole judges of the facts,’’ and the jury must find facts solely on
the basis of the evidence. The court also stated: ‘‘The actions of the court
during the trial and ruling on motions or objections by counsel or in com-
ments to counsel or in setting forth the law in these instructions are not to
be taken by you [as] any indication of the court’s opinion as to how you
should determine the issues of fact. If the court has expressed or intimated
any opinion as to the facts, you are not bound by that opinion. What the
verdict shall be is your sole and exclusive duty and responsibility.’’ The court
also provided the jury with lengthy instructions about assessing credibility.
In relevant part, the court stated: ‘‘[Y]ou should size up the witnesses and
make your own judgment as to their credibility and decide what portion
. . . of any particular witness’ testimony you will believe based on these
principles.’’ (Emphasis added.)
13
The prosecutor expressly stated to the jury that he was not in any way
relying on his personal beliefs or anything outside of the evidence presented
at trial. He prefaced his rebuttal argument by stating, in relevant part, as
follows: ‘‘[F]or a prosecutor or a defense attorney to stand up here and say
‘in my opinion,’ be careful. Because what they’re asking you to do, indirectly,
is to say, this person knows a lot. They might know some things that I’m
not privy to—objections, you know, evidence that wasn’t admitted or just
the fact that they’ve been doing this for a long time. . . . And they’re asking
you to basically say, hey, trust me, in my opinion I know, that’s not proper.
If I got up here and said that—well, it would be a big problem for the state,
big problem. So, if I ever accidentally say anything like that, disregard it. I
try very hard not even to use the word ‘I.’ It’s always the state argues,
because I don’t want your verdict to rest on that kind of thing. I want [it]
to rest on the facts and the evidence, not on my opinions or beliefs.’’
14
The affidavit that accompanied the warrant application stated that,
according to postal service records, the East Hartford residence where the
search occurred was registered to Yvette White, who was the defendant’s
mother. Additionally, the affidavit stated that the defendant’s ‘‘Connecticut
Identification Card’’ reflected this East Hartford residence as his address.
15
‘‘In Franks v. Delaware, [438 U.S. 154, 155–56, 98 S. Ct. 2674, 57 L. Ed. 2d
667 (1978)], the United States Supreme Court held that where the defendant
makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the [f]ourth [a]mendment requires
that a hearing be held at the defendant’s request. . . . The court in Franks
mentioned only a false statement . . . included . . . in the warrant affida-
vit; subsequent cases, however, have extended Franks to include material
omissions from such an affidavit. . . . If the ensuing Franks hearing dis-
closes either an intentional or reckless falsehood, the court must excise
that material from the affidavit and judge the probable cause of the affidavit
shorn of that material.’’ (Citation omitted; internal quotation marks omitted.)
State v. Therrien, 117 Conn. App. 256, 262, 978 A.2d 556, cert. denied, 294
Conn. 913, 983 A.2d 275 (2009).
16
The motions stated in relevant part: ‘‘That the affidavit(s) in this case
prepared and served by the constable . . . knowingly and intentionally, or
with reckless disregard for the truth, made incomplete statements, half-
truths, commissions, and dishonest innuendo concerning items necessary
for the finding of probable cause for the issuance of the warrant.’’
17
The jury heard testimony from a state police detective that a Coinstar
machine, which resembles an ATM, is located in some stores and, essentially,
for a commission, exchanges coins for a receipt that may be exchanged for
cash in other denominations. She testified that ‘‘[y]ou pour all your coins
into it and [it] tallies up how much the coin is and then it spits out a receipt
and then you take [the receipt] to a cashier or [to] customer service and
you get reimbursed for the . . . cash value of the receipt.’’
18
Because the defendant’s appellate claim is limited to the issue of proba-
ble cause as it relates to the search warrant, we need not examine the
court’s analysis with respect to the arrest warrant.
19
In 2016, the defendant, appearing as a self-represented litigant, filed a
motion in which he asked the court to compel the state to provide him with
a copy of a search warrant application for his residence that, in his view,
had been presented by the police to the judicial authority prior to the search
warrant application that was presented to and granted by Judge Ginocchio
in July, 2013. The defendant based his motion on a portion of the supporting
affidavit that stated that the application ‘‘has been presented to the judicial
authority previously.’’ Another portion of the application states that the
application ‘‘has not been presented . . . in any other court to any other
judge or judge trial referee.’’ On November 4, 2016, the court, Schuman, J.,
held a hearing on the motion for disclosure during which it heard testimony
from one of the affiants, Laura Kraus, a state police detective. In relevant
part, Kraus testified that the reference to a prior application was simply a
typographical error.
In denying the motion for disclosure, the court stated that it found Kraus’
testimony to be credible and concluded that there was no prior application
for the state to disclose. The court further noted that, because, in connection
with the motion, the defendant, who was proceeding at that time as a self-
represented litigant, believed that the inaccuracy in the application was a
basis on which to suppress evidence seized incident to the search, it would
also construe the motion as a Franks motion. Treating the motion as such,
the court concluded that, without the inaccuracy in the application, there
was probable cause to search the defendant’s residence and that ‘‘there
was no intentional or reckless disregard of the truth [or] an intentional
misstatement . . . .’’ Accordingly, the court stated that the grounds set
forth in the motion were not a sufficient basis on which to suppress evidence
seized during the execution of the warrant at the defendant’s residence.
20
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
21
Kraus and Combes averred that they had been members of the Depart-
ment of Emergency Services and Public Protection, Division of State Police,
since January, 2006.
22
Alternatively, we also conclude that the defendant’s claim fails under
Golding’s fourth prong. ‘‘Whether a constitutional violation is harmless in
a particular case depends upon the totality of the evidence presented at
trial. . . . If the evidence may have had a tendency to influence the judgment
of the jury, it cannot be considered harmless. . . . Whether such error is
harmless in a particular case depends upon a number of factors, such as
the importance of the [evidence] in the prosecution’s case, whether the
[evidence] was cumulative, the presence or absence of evidence corroborat-
ing or contradicting the [evidence] . . . and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we must examine the
impact of the evidence on the trier of fact and the result of the trial. . . .
The state bears the burden of proving that the error is harmless beyond a
reasonable doubt.’’ (Internal quotation marks omitted.) State v. Smith, 156
Conn. App. 537, 560–62, 113 A.3d 103, cert. denied, 317 Conn. 910, 115 A.3d
1106 (2015).
Although the state introduced evidence seized from the defendant’s resi-
dence, including shotgun shells and a ski mask, the state has demonstrated
that, in light of the strength of its overall case apart from this evidence, it
is unlikely that this evidence significantly contributed to the verdict reached
by the jury. Relying on our previous discussion of the facts supported by
the evidence, we observe that the state presented testimony from one of
the three perpetrators of the home invasion, Dunning, that the defendant
was one of the perpetrators. The state presented evidence that, prior to his
release from prison, the defendant made statements to his mother that he
would acquire ‘‘a bunch of money’’ once he was released. These statements
strongly corroborated the evidence that the defendant had participated in
the planning and the commission of the home invasion. The state presented
video surveillance evidence that depicted the defendant’s presence with Le,
another person identified as a perpetrator, hours following the home inva-
sion. The surveillance video strongly supported a finding that the defendant
exchanged coins that were stolen from the victim at the same time that Le
was attempting to use the victim’s stolen credit card. Finally, the state
presented evidence of the defendant’s consciousness of guilt by means of
his evasiveness concerning his relationship with Le, his misrepresentations
with respect to cashing coins at the supermarket, and the content of his
telephone conversations with multiple persons during his incarceration
while awaiting trial. As we have discussed previously, in these telephone
conversations, the defendant attempted to threaten Dunning to dissuade
him from testifying against him and made statements concerning Le that
suggested he had knowledge of the planned home invasion. In light of this
other evidence that was not tainted by any alleged impropriety with respect
to the search warrant, we conclude that the admission of the evidence that
was the fruit of the search at issue was harmless beyond a reasonable doubt.